PARTIES ASKS FOR THE COURT TO DETERMINE THE PRIMARY RESIDENCE OF THEIR DAUGHTERS
Dallal & Chin & Anor [2021] FCCA 70 (22 January 2021)
Facts:
Each of their parents seeks primary residence regarding their two young girls, X born in 2014 and Y born in 2017. Separation took place when the children were still very young and the mother has been the primary carer for the last two years (Y after all is only four even now, and X is only eight). Great emphasis is placed by the father and his family upon the necessity for the children to live with the father so that their religious upbringing can be properly, as it were, be imbued and absorbed.
Issue: Where should the primary residence of the children be?
Law:
Analysis:
The mother has always been the primary carer. She breastfed the children. True, it is that she has had this physical discipline issue in the past, and true it also is that X was injured when in her care in the refuge. Nonetheless, the Department of Human Services has not at any stage had any concerns, and having seen and heard her evidence, the court accepts that she is a loving and committed mother who will look after the children properly.
As to the father’s contention, the court accepts the sincerity of that point of view its importance. Nonetheless, cultural and religious matters are only one of the matters that the Court is required to have consideration of. The children had been with the mother for two years since separation and that it would be disruptive to change their residence, and emotionally damaging and not necessary.
The children have to live with one of their parents, and I have concerns that whichever parent they do live with will not readily facilitate either a relationship with the other parent or any kind of religious or cultural emphasis in the other's household. That is the stark fact of it. In the end, the mother has always been the primary carer and should remain so.
Conclusion: The court orders that the children shall live with their Mother.
